Post Office/Bank of Ireland. credit card - CCJ & Restriction sold to cabot - reduced settlement?

[AndyOrch]

Hi BL

 

This Dn is certainly causing them some concern and a weak point you should use to your advantage.Shortly you will come to the Disclosure stage.N265

If you do not list said DN in your List then you can not introduce it or rely upon it.Something I would not advocate doing.

Should you list it and only on after receipt of the Claimants N265 to check if they have listed their valid copy (not) then list it.

 

However there are ways of being obstructive (something a Claimant would never consider and perish the thought I would suggest it)

 

Civil Procedure Rules

 

Part 31 DISCLOSURE AND INSPECTION OF DOCUMENTS

 

 

31.1

 

 

 

 

 

Meaning of disclosure

 

31.2

 

A party discloses a document by stating that the document exists or has existed.

 

 

 

Right of inspection of a disclosed document

 

31.3

 

(1) A party to whom a document has been disclosed has a right to inspect that document except where –

(a) the document is no longer in the control of the party who disclosed it;

 

(b) the party disclosing the document has a right or a duty to withhold inspection of it; or

 

© paragraph (2) applies.

 

(Rule 31.8 sets out when a document is in the control of a party)

(Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection)

 

(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –

(a) he is not required to permit inspection of documents within that category or class; but

 

(b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

 

(Rule 31.6 provides for standard disclosure)

(Rule 31.10 makes provision for a disclosure statement)

(Rule 31.12 provides for a party to apply for an order for specific inspection of documents

 

 

Obviously none of the above should matter to the Claimant as they will be reliant on their own valid copy wouldnt they??

 

 

Regards

 

Andy

[bradfordlad]

So what you're NOT suggesting I do is reply to the solicitors saying that under CPR 31.3(2)(b) I have the right to withold their inspection of the document as it would be disproportionate to the issues in the case, namely that they have their own reconstituted DN which they can rely on as being factually correct - this must be the case as they originally submitted it to the Court with the Allocation Questionnaire.

 

Obviously I wouldn't consider sending this letter, but I want to make sure it's correct - before I don't send it.

 

BL

 

[AndyOrch]

You cant use it in a letter its part of the N265 and only to be used at this time.Ignore their veiled request for a copy of yours for now until disclosure.Bump your thread when you get to this stage.

[bradfordlad]

Right you are - thanks again Andy. I'm kind of hoping it doesn't get as far as disclosure - I suppose it depends on how the Directions Hearing goes later this month.

 

I guess it's still not too late to ask the court to strike out the claim?

 

And it's not too risky to ignore the solicitors letter? They did make the request under the guiding principles of CPR (roughly their words if I remember rightly!) - shouldn't I acknowledge their letter? Or is it time to shut up & let the Judge decide whats for the best?

 

Thanks again,

 

BL

Edited September 6, 2010 by bradfordlad
doh!

[AndyOrch]

You could respond to them and say you may be prepared to disclose it at Disclosure point subject to them listing theirs.Which CPR do they request it under?

[bradfordlad]

Hi guys,

 

another update.

 

The Directions Hearing was back end of September. Wife couldn't make it, woke up with MAJOR stomach ache (and all that goes with it!) so I emailed the court with "our point of view" as suggested by the court official I spoke to when I rang. Interestingly I asked if I could attend as a representative of my wife, but was told NO.

 

Why can the claimant send a representative, but not the defendant? What if she were using a solicitor on her behalf?

 

Received a new Order from the Court on Saturday morning. I have to serve on the Claimants solicitor a copy of the Default Notice (and I quote) "which she says was served upon her" (remember its my wife's case) - by 4pm on Tuesday 5th October!! No pressure then! It's gone special delivery today...

 

WHICH SHE SAYS WAS SERVED UPON HER?? A case of the Claimants representative pulling the Judges strings I suspect?

 

Anyway, the case is now stayed for a month, but by then the parties have to write to the Court as follows:

 

1) stating whether they request allocation to small claims or fast track

2) requestion directions to take the case through to trial

 

So where to go from here? I sent a covering letter to the solicitors with my copy of the DN, saying basically what was wrong with their alleged DN and why it differed to the one they sent me. I also pointed out AGAIN that my whole argument revolves around the invalidity of the DN based on insufficient time to remedy. I requested that they discuss this point with their client again, and that they withdraw proceedings - I also threw in again the quote from Judge Langan in the BoS V Mitchell about big banks pursuing court action even when their error has been pointed out to them.

 

Do I need to worry about the court order? I'm terrified of going to trial and want to avoid it at all costs..

 

Cheers

 

BL

Edited October 4, 2010 by bradfordlad
slight correction!

[AndyOrch]

Hi Bl

 

So basically you have a month to try to come to some mutual agreement or submit AQs and the case proceeds.

If you opt for SCT this will protect you from costs and also keep matters very informal.

With regards to your last statement there is no need to fear court and argue your case, after all you did defend in an attempt to either win and stop any CCJ or argue your case and maybe gain an

agreeable conclusion.Litigation is about who blinks first and crumble or will you call their bluff.Only you can decide.

 

Regards

 

Andy

[bradfordlad]

Thanks Andy, and well put.

 

We are right. It's as simple as that - I actually said in my letter to the sols: "The fact is simple. Your client made a mistake." - We WILL see this through, but I'd prefer to go SCT if possible. The balance is £7xxx so doesn't this exclude us from Small claims though? I like informal!!

[AndyOrch]

Well technically you are over the 5K limit for SCT but the court as made the option in its order:- or have you miss typed it

 

Anyway, the case is now stayed for a month, but by then the parties have to write to the Court as follows:

 

1) stating whether they request allocation to small claims or fast track

2) requestion directions to take the case through to trial

Its not imposable for that amount to be dealt with at SCT if the case is fairly simple.

Regards

Andy

 

 

[bradfordlad]

Coolio!!

 

Definitely £7k, but the order is exactly as typed. So, SCT it is then Do I actually need to do anything now, or wait for the sols to reply to my letter and then get my letter to court before deadline?

 

As always, thanks for your help Andy.

[AndyOrch]

You can wait to see if the Claimant approaches you or you may instigate communications re settlement.If neither materialises then download the N149 and submit by the required date.

[bradfordlad]

Does it make a difference that we've alread done AQ's from back in May when they instigated proceedings? The case has been stayed a couple of times since then, and then the judge ordered the Directions Hearing for last month, presumably to try figure out what the feck was going on!!

[AndyOrch]

It is normal to resubmit AQs after stays in case of any change within the claim.

 

Andy

[bradfordlad]

Hi peeps,

 

here's a HUGE update....

 

Basically, I received an Order from the court following a DJ reviewing the file in November. The case is now allocated to SCT and is listed for a full hearing at the beginning of Janaury, and we have to prepare full witness statements and document bundles - these are to be with the other parties by 24th December

 

The DJ also feels the case is suitable for mediation and we have received a letter from the mediation service today.

 

HOWEVER....we also received a letter from the Solicitors....they finally seem to have woken up to the fact that our defence lies solely on the fact that the DN gave insufficient time due to dates, and in the absence of any statement to the contrary we have been working on the premise that the DN was posted second class.

 

They have now said that the claimant will prepare a witness statement confirming the DN was posted FIRST CLASS! B'STARDS!! Why didn't they do this a year ago and save us all this grief?

 

Simply put - does this mean our case is now blown out of the water?

 

They go on to say that if we require an affidavit swearing it was sent first class, they would want to know under what authority we were requesting it. I'm out of my depth on this one guys - help!!

 

Can you sense my panic?

 

As always, any help greatly appreciated

[AndyOrch]

Hi peeps,

 

here's a HUGE update....

 

Basically, I received an Order from the court following a DJ reviewing the file in November. The case is now allocated to SCT and is listed for a full hearing at the beginning of Janaury, and we have to prepare full witness statements and document bundles - these are to be with the other parties by 24th December

 

The DJ also feels the case is suitable for mediation and we have received a letter from the mediation service today.

 

HOWEVER....we also received a letter from the Solicitors....they finally seem to have woken up to the fact that our defence lies solely on the fact that the DN gave insufficient time due to dates, and in the absence of any statement to the contrary we have been working on the premise that the DN was posted second class.

 

They have now said that the claimant will prepare a witness statement confirming the DN was posted FIRST CLASS! B'STARDS!! Why didn't they do this a year ago and save us all this grief?

 

Simply put - does this mean our case is now blown out of the water?

 

They go on to say that if we require an affidavit swearing it was sent first class, they would want to know under what authority we were requesting it. I'm out of my depth on this one guys - help!!

 

 

Affidavit evidence

 

CPR 32.15

 

(1) Evidence must be given by affidavit instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.

 

(2) Nothing in these Rules prevents a witness giving evidence by affidavit at a hearing other than the trial if he chooses to do so in a case where paragraph (1) does not apply, but the party putting forward the affidavit may not recover the additional cost of making it from any other party unless the court orders otherwise.

 

 

Form of affidavit

 

CPR 32.16

 

An affidavit must comply with the requirements set out in Practice Direction 32.

 

 

 

 

Can you sense my panic?

 

As always, any help greatly appreciated

 

Regards

 

Andy

[bradfordlad]

THanks Andy,

 

Is there any point carrying on though? If they can "prove" the dn was sent 1st class then isn't it Game Over for us?

 

BL

[AndyOrch]

Hi BL

 

I would hope you had something more to go on than just the DN. Like wise the Claimant wishes to fight on that point if its prepared to instigate a witness and affidavit to prove said point.

I would be very surprised if any DN was ever sent first class and yet they are prepared to purge themselves for sake of proving this?

If you read the CPR above there are risks to this ie costs and it must be separate to any WS. A gamble for any claimant.

[bradfordlad]

HI Andy, had an email today from the mediation service..the claimant wishes to mediate, do I?

 

I'd have thought they'd have gone for the jugular

[bradfordlad]

OOps! ...as I was saying... Jugular, now theyve got me on the dates, but perhaps theyre not too confident? Either way, mediation sounds better from our perspective..

 

Does y mean

[bradfordlad]

OOps! ...as I was saying... Jugular, now theyve got me on the dates, but perhaps theyre not too confident? Either way, mediation sounds better from our perspective..

 

Does it mean I avoid a ccj? What do we do aboit the hearing? Can we ask for it to be adjourned?

 

Sorry for so many questions! The annoying thing is I KNOW it was sent 2nd class, but I didn't keep the envelope...(it was before I was educated in the ways of CAG!) Hey-ho, live and learn!!

 

Apologies for the spelling too, i'm typing this on my phone....

[bradfordlad]

One other question - if we go down the mediation route, do we forget that the hearing is booked for early January? Seems a bit naive to do that but we haven't been given much time! - Can we ask for more time, or is it even wrth it? Might just say "we're skint - we can give you £5 a month" and see what happens.....

 

any thoughts?

[bradfordlad]

Hi, just bumping up the thread again as I've gone through all the court documents and the situation is as follows:

 

The hearing (Small Claims Track) is set for 7th January. All documents that I intend to reply on at the hearing must be with the Claimant and the Court at least 14 days before the hearing (I make that Christmas Eve!).

 

The Mediation Service have been in touch to say the Claimant is prepared to go through mediation. I've emailed the Mediation Service back to ask a couple of questions, but they've not replied to me (that's not helpful!)

 

I could really do with some guidance on this as I'm not sure how it all works.

 

To summarise my position now - The DN was defective as they sent it 2nd class (although stupidly I didn't keep the envelope so can't prove it) - They are prepared to produce a Witness Statement saying it was sent First Class.

 

1- Can I ask them to prove "how they know it was sent 1st class"? It sounds really petty to me, so I'm sure a Judge would think I was being an idiot!!

 

2 - If we mediate: a) What do we do about the Hearing, considering the papers have to be with everyone by Friday and b) can we come to a repayment agreement that means there doesn't have to be a CCJ?

 

3 - If I should work on the assumption that the hearing IS going ahead, then I'll need to produce a formal Witness Statement. I could do with assistance in the legalese wording!

 

4 - I honestly think our case is sunk as the dodgy DN was our only real defence. If they are prepared to produce a Witness Statement then I think we're stuffed in Court, so I think the best thing now is to try avoid a CCJ at all costs! With that in mind, is there any mileage in point 2b above?

 

5 - If we can come to some agreement with BoI, it isn't going to be much. My Wife is still unemployed, and I'm not earning much being self employed so I reckon at best we could only afford to pay them maybe £5 a month. Are they likely to accept this?

 

Hope I don't sound like I'm rambling, but I'm scared there isn't enough time to get everything together what with Christmas etc...

 

Cheers all...

 

BL

[IdaInFife]

Even if an arrangment is made it will be ont he basis of a ccj being granted.

 

Do you own your own home?

[bradfordlad]

Thanks for the prompt reply!

 

Yes, we do own our home, albeit we're pretty sure to be in negative equity right now....

[citizenB]

What type of postal service did the company usually mail letters to you by ! Did they send other "required" documents by 2nd class or UK Mail ? If so, you could offer up the argument that other statutory documents, etc were sent by 2nd class, what proof do they offer that the DN was sent by 1st class.

 

What type of mediation are you going through.. is it on the telephone ?

 

You should continue to prepare as though the hearing proper will go ahead. Witness statement should be in your own words really.. there is no point in using "legalese" if you dont understand what you are saying.